A new Wisconsin law allows police and jailers to strip search anyone held in a cell with another person, but a new US Court of Appeals decision suggests that the Legislature and Gov. Scott Walker may have outstripped the Constitution.
The 7th Circuit Court of Appeals last month overturned an Illinois judge's decision involving strip-searches of people in custody of the Kankakee County, Illinois Sheriff's Department, whether they were bound for the general population or not, and before any judge found probable cause. The judge essentially approved the practice.
Wisconsin's new law also allows strip searches of any jail inmate housed for any length of time with another person, even if the inmate never makes it to the general population. The new Wisconsin strip search policy applies to both those held on murder charges and those held for unpaid parking tickets. It says that a strip search can be performed on "a person arrested or otherwise lawfully detained or taken into custody, if the person will be incarcerated, imprisoned, or otherwise detained in a jail or prison with one or more other persons."
The law does not limit strip searches to those bound for the general population.
In the Illinois case, the Appeals Court said U.S. Supreme Court justices, in Florence vs. Burlington County, already warned against overly broad strip search policies.
if one inmate is searched, they all must be searched -- jailers may not use discretion in deciding who to strip search or how searches are conducted.
"Chief Justice Roberts and Justice Alito both concurred specifically...to warn against reading the Court's opinion to authorize automatic strip searches of people who are not bound for the general population," the 7th Circuit panel said in its opinion, written by Circuit Judge Frank H. Easterbrook. "As Justice Alito observed, many arrestees are released without going into the general population. Some are not detained beyond the time needed to post a bond; others may be held in areas devoted to arrestees whose custody has not received judicial approval."
And, the panel said, if one inmate is searched, they all must be searched -- jailers may not use discretion in deciding who to strip search or how searches are conducted.
"Florence deemed the strip-search policy reasonable precisely because every arrestee going into the general population was examined for contraband, lice, disease and gang tattoos," Easterbrook wrote in a decision joined by Circuit Judge Diane S. Sykes and District Judge Lynn Adelman, who was sitting by designation. "Searching half or two-thirds or four-fifths of the new arrivals will not prevent the introduction of lice or disease, or outbreaks of gang violence, and it cuts down on the ability of the policy to curtail contraband."
Allowing jailers to search only some new arrivals may encourage other inmates to use them to bring in contraband, including drugs and weapons, the court said.
"And searching on an arresting officer's say-so poses a risk of harassment, or letting the process be the punishment," Easterbrook said.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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